Livett v R [2016] NZHC 2306 (28 September 2016)

Last Updated: 17 October 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-18 [2016] NZHC 2306

BETWEEN	KAYNE LIVETT Appellant
AND	THE QUEEN Respondent

Hearing:	22 September 2016
Appearances:	A Stevens for Appellant K Courteney for Crown
Judgment:	28 September 2016

_{JUDGMENT OF MANDER J}

[1] The appellant, Kayne Livett, appeals his sentence of two years imprisonment imposed on a charge of assault with intent to injure.¹ He alleges the sentence was manifestly excessive.

[2] At the time of the imposition of this sentence, he was also sentenced on three other charges of violent offending, including two other charges of assault with intent to injure. This resulted in an overall effective sentence of three years and seven months imprisonment.

[3] The grounds of Mr Livett’s appeal relate only to the charge of assault with intent to injure committed on 27 November 2015 at Alexandra (the Alexandra assault). The Crown contends the focus of the appeal must be on whether the end sentence imposed for all the offending was appropriate and not whether any

_{individual component part is without error. Mr Livett contests that proposition.}

¹ _{Police v Livett [2016] NZDC 11290.}

LIVETT v R [2016] NZHC 2306 [28 September 2016]

Background

Male assaults female – 21 April 2015

[4] Mr Livett was sentenced to six months imprisonment on a charge of male assaults female. On 21 April 2015, a verbal argument between Mr Livett and his partner culminated in him punching the victim in the eye with a closed fist. The victim received a two centimetre cut that required five stitches. She also had significant bruising around her eye.

The Alexandra assault – 27 November 2015

[5] It is the sentence of two years in respect of this offending which is the subject of challenge on this appeal. On the morning of 27 November 2015, the victim’s son and a friend ran into the living room of their home to alert the father to the presence of Mr Livett at the end of their driveway. They claimed to have been followed by Mr Livett. The summary of facts reads:

The victim has walked out side the address to see what the issue was.

The Defendant has seen the Victim on the balcony at the address and has entered the property without permission by walking up the driveway.

The Defendant has called out to the Victim asking if the two boys were his children.

The Victim has replied that only one was.

The Victim has walked down the concrete steps adjacent to the balcony to speak to the Defendant whom was standing at the bottom.

Without warning the Defendant struck the Victim to the face with a punch thrown from his left arm.

[6] The punch resulted in the victim’s glasses being knocked from his face and caused him to fall back on the steps. Mr Livett has then continued to throw several punches about the victim’s head and face whilst on the ground. The victim did not offer any resistance and stayed on all fours until the punches stopped. Mr Livett then left the address, warning that if the victim called the police he would return and “smash” him again.

[7] As a result of the attack the victim suffered a black eye, bruising and swelling to his right cheek, and cuts and abrasions to his right ear.

Assault with intent to injure – 25 January 2016

[8] Mr Livett was sentenced to seven months imprisonment on a charge of assault with intent to injure arising out of an incident that occurred when he was on remand for the earlier assaults at the Otago Corrections Facility.

[9] Whilst in a secure yard, Mr Livett without warning punched a fellow prisoner in the face with his fist. While his victim attempted to protect himself, Mr Livett delivered a flurry of further punches to the side of the victim’s face and kneed him in the stomach a number of times. After a short scuffle the victim managed to break free from Mr Livett who continued to follow him aggressively around the yard before desisting. The victim was observed by a Corrections officer as looking distressed with fresh injuries to his face, including a puffy right eye and split lip.

Assault with intent to injure – 7 April 2016

[10] The final charge of assault with intent to injure also occurred in prison. Again, whilst inside a secure yard, Mr Livett without warning grabbed his victim around the head and punched him twice. He grappled with his victim on the ground, during which he placed his victim in a body lock and pulled him backwards, arching his back and causing his neck to hyperextend. The victim was observed struggling to breathe and his face changing colour.

[11] Corrections officers intervened. The victim who was seen by medical staff was observed with a swollen and blackened right eye. An old back injury was aggravated.

The sentencing decision

[12] Judge Phillips commenced his sentencing remarks by noting Mr Livett’s extensive criminal history, which included 10 prior convictions involving violence. The pre-sentence report described him as a high risk individual with no insight into

his offending. He had previously received a first strike warning which the Judge observed had not deterred his violent offending.

[13] After recording the respective submissions of the Crown and Mr Livett’s counsel, the Judge reviewed the relevant principles and purposes of sentencing. He placed particular emphasis on the protection of the community as a result of Mr Livett’s very strong propensity to violence.

[14] In relation to the Alexandra assault, Judge Phillips noted the violent offending was against a vulnerable man “on his own property; at his own home; without any form of provocation in my view whatsoever”.² Earlier, in summarising the aggravating features common to much of the offending, the Judge referred to the presence of an attack to the head, and the vulnerability of the victims who were subjected to unprovoked and unexpected attacks. In relation to the Alexandra offending, the continuation of the attack on the victim when on the ground, a home invasion, and the ongoing consequences for the victim were identified as relevant

factors.

[15] In approaching each of the sentences separately, Judge Phillips took a starting point for the male assaults female charge of six months imprisonment. In respect of the Alexandra assault the Judge took a starting point of 20 months imprisonment, and on each of the prison assaults a 12 month starting point. Because each charge represented a separate act of violence the sentencing Judge approached those starting points as cumulative terms, resulting in a total starting point of 50 months for all four charges.

[16] Because of Mr Livett’s prior convictions for violent offending which showed no indication of reducing, a four month uplift was imposed. In relation to credit for the guilty pleas, Judge Phillips stated:³

Some of the pleas were prompt. Some of the pleas were late. I acknowledge what you have said in relation to the pleas on the Alexandra matter. I also note that in reality for the serious assaults you had no defence, in my view,

² _{Police v Livett, above n 1, at [6].}

³ At [9].

whatsoever. I allow overall 15 percent. A total of nine months for the guilty pleas credit.

[17] From the preliminary end point of 45 months imprisonment after an allowance for the remission of outstanding fines of $6,107.79 and an adjustment for the principle of totality of two months, the total end sentence imposed was one of three years and seven months. Having arrived at that ultimate effective sentence, Judge Phillips structured that period of imprisonment by imposing cumulative sentences of two years for the Alexandra assault, seven months for the January prison assault, and one year for the April prison assault. On the charge of male assaults female a concurrent sentence of six months was imposed. The fines were remitted in lieu of a concurrent term of two months. An existing sentence of community work was cancelled.

The appeal

[18] The appeal is based on four discrete grounds related to the sentence imposed for the Alexandra assault.

(a) The erroneous introduction of “home invasion” as an aggravating factor.

(b) A four month uplift for previous offending attaching to the Alexandra assault.

(c) The absence of discrete credit for the guilty plea which, in the circumstances of the Alexandra assault, it was submitted should have been a full credit of 25 per cent.

(d) The starting point taken for the Alexandra assault was too high, which is marked by the disparity in the sentences imposed for the charge of assault with intent to injure.

Jurisdiction and approach to appeal

[19] The appeal Court must allow an appeal against sentence if satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.⁴ In any other case the Court must dismiss the appeal.⁵

[20] The Crown submitted the key issue on the appeal is whether the total sentence imposed was within the available range and that before reducing the sentence I would need to be satisfied the overall sentence was manifestly excessive or wrong in principle. Mr Livett rejected that approach. He submitted, by reference to s 85 of the Sentencing Act 2002, that when considering the imposition of sentences of imprisonment for two or more offences, the individual sentences must

reflect the seriousness of each offence.⁶

[21] The principle of totality requires where cumulative sentences are imposed, either individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.⁷ Section 85(3) of the Sentencing Act provides that if, because of the need to ensure the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short

sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences must be preferred.

[22] It is clear therefore that individual sentences need to reflect the seriousness of each offence where a defendant is before the Court on a number of charges. To accommodate the totality principle and to ensure individual sentences reflect the seriousness of each offence, longer concurrent sentences or a combination of concurrent and cumulative sentences must be preferred. Parliament’s concern in providing that direction was to ensure that discrete sentences imposed for individual

_{offences reflected there seriousness. However, that concern is a distinct}

⁴ _{Criminal Procedure Act 2011, s 250(2).}

⁵ _{Section 250(3).}

⁶ _{Sentencing Act 2002, s 85(1).}

⁷ Section 85(2).

consideration from the test to be applied on an appeal from a sentence based on a submission that a sentence is manifestly excessive.

[23] Whether a sentence can be held to be manifestly excessive requires an examination of the maximum sentence prescribed by law for the offence; the level of sentence customarily observed with respect to that type of offence; the relative seriousness of the offences of that type; and the personal circumstances of the offender.⁸ Where a defendant is for sentence for multiple offending a challenge to a sentence imposed for a particular offence will consequentially place in issue the total penalty imposed for all the charges for which the defendant was before the Court;⁹

“it is the appropriateness of the final sentence that counts, not how it is made up”.¹⁰

Guidance on the approach to be taken when an offender is for sentence on multiple charges is provided by the Court of Appeal in R v McCulloch:¹¹

...the issue of whether or not a sentence is manifestly excessive is to be examined in terms of the sentence actually passed, rather than the process by which it is reached. In this case we consider it appropriate to approach the matter on the basis of whether or not the lead sentences for the individual categories of offending considered by the Judge are manifestly excessive, and then to consider whether the ultimate sentence offended against the totality principle.

[24] In my view, the first stage is to consider whether the sentence imposed for the individual offence, here the Alexandra assault, was manifestly excessive before considering whether the ultimate sentence imposed resulted in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

Home invasion as an aggravating factor

[25] Mr Livett submitted the Alexandra assault did not carry the hallmarks of a home invasion, and Judge Phillips’ reference to that factor as an aggravating feature was misplaced. There is no dispute that Mr Livett did not enter the victim’s house. He submitted his entry onto the property was for the purpose of communicating with

_{the occupant, presumably pursuant to an implied licence to enter the property.}

⁸ _{R v Monkman CA445/02, 3 March 2003 at [6].}

⁹ _{R v Hadley [2003] NZCA 6; [2003] 2 NZLR 88 (CA).}

¹⁰ _{Hughes v R [2012] NZCA 388 at [29].}

¹¹ R v McCulloch [2004] NZCA 221; [2005] 2 NZLR 665 (CA) at [50].

[26] The Crown acknowledged the offending took place outside the victim’s dwelling and there was no element of forced entry. However, the fact the assault took place on the victim’s property after entering uninvited legitimately allowed the sentencing Court to consider there to be an element of home invasion present, and to treat that factor as justifying a higher starting point. In any event, it was submitted a starting point of 20 months imprisonment was within range.

[27] The parties’ respective submissions addressing whether “home invasion” could legitimately be treated as an aggravating feature of the Alexandra assault largely turned on Mr Livett’s conduct when he came from the street to the bottom of the concrete steps of the victim’s house. Notwithstanding he was sentenced on the basis of the content of the summary of facts, Mr Livett referred to the formal written statement of the victim’s son who described Mr Livett seeing the father when he went out a ranch slider. The son’s evidence was that when Mr Livett saw his father he turned around, walked up the driveway and asked whether he and his friend were the victim’s “kids”. The father replied and “walked down the steps to talk to him”.

[28] It is uncontested that when the father came down the balcony steps Mr Livett punched him. I do not consider this account to be at variance with the summary of facts, as set out at [5]. Mr Livett sought to submit that he went on to the property to communicate with the father, however, it is clear that once having ascertained who his victim was Mr Livett suddenly and without warning attacked the father. He had advanced down the driveway to the bottom of the steps, clearly with the purpose of assaulting the person who had identified himself as being related to one of the two boys with whom Mr Livett had previous contact.

[29] As I have already remarked, this was not a situation where a person’s home was entered. While Judge Phillips initially used the descriptor “a home invasion” when listing aggravating factors, the reference to that label was placed in context later in his sentencing remarks when the Judge referred to the violent offending taking place on the victim’s “own property; at his own home”.

[30] The Courts have previously recognised that this aggravating feature will be relevant where although a person’s house is not entered, an element of home

invasion is still present. In Simeon v R, the sentencing Judge considered the aggravating feature of home invasion had been triggered where the attack occurred on the victim’s driveway.¹² On appeal the Court of Appeal observed the attack “was made worse by virtue of the group going onto the victim’s property”.¹³ Similarly, in Katene v R, the Court of Appeal, in reference to an assault which occurred on the

driveway at the back of the victim’s property, was considered as involving “an

element of home invasion”.¹⁴

[31] Strictly, the mandatory identification as an aggravating factor set out in s 9(1)(b) of the Sentencing Act 2002, which provides for the unlawful entry into, or presence in, a dwelling place may not have triggered. However, that is not to the exclusion of the type of circumstance present in this case where a person has been attacked on their own property by a stranger. As already observed, Mr Livett advanced down the driveway clearly with the intention of assaulting the occupant after he had identified him as the father of one of the boys. In my view, Judge Phillips was entitled to take that aspect of the attack into consideration as a relevant aggravating factor.

Uplift for previous convictions

[32] Mr Livett submitted the uplift of four months for his prior convictions for violence was excessive. He submitted, in reliance on a number of Court of Appeal decisions, that an uplift of between two to three months would have been sufficient.¹⁵

[33] In my view, that submission is unsustainable. Mr Livett has a score of previous convictions for assault committed over the previous 10 years. He came before the Court having pleaded to four further assaults committed over the course of

11 months. This was a personal aggravating feature which was required to be reflected in the sentences. Had Mr Livett appeared separately on these charges each

_{would likely have attracted its own discrete uplift for his criminal history. The four}

¹² _{Simeon v R [2010] NZCA 559 at [35].}

¹³ _{` At [43].}

¹⁴ _{Katene v R [2010] NZCA 394 at [20].}

15. Goodman v R [2016] NZCA 64, uplift of two months for prior convictions for violence; Sharma v R [2015] NZCA 468, uplift of three months; Wati v R [2016] NZCA 69, three month uplift.

month uplift effectively spread across the four episodes of violence was well within range, and demonstrates the need to assess the effective sentence as a whole.

Discount for guilty pleas

[34] The approach taken by Judge Phillips was to allow an overall 15 per cent discount for the entry of guilty pleas. That allowance was in response to the fact that some of the pleas had been entered promptly and some were late. The Judge also observed that in relation to the serious assaults, which I take to be the Alexandra assault and the two prison assaults, Mr Livett realistically had no defence.

[35] Mr Livett submitted the discount for pleading guilty to the Alexandra charge was insufficient. He submitted the guilty plea had been entered once the original charge of injuring with intent to injure was amended to one of assault with intent to injure and a burglary charge not pursued. It was submitted that a credit in the range of 20 to 25 per cent should have been provided for the Alexandra assault, and a 20 per cent deduction overall for all the offending.

[36] The Crown submitted the global 15 per cent discount applied across the board to the pleas which were entered at different times was appropriate. It noted that from the sentencing remarks it appears Judge Phillips attention had been brought to the fact that Mr Livett pleaded guilty to the Alexandra charge as soon as it was amended and the burglary charge withdrawn.

[37] On the male assaults female charge, Mr Livett first appeared before the Court on 30 June 2015. His guilty plea was not entered until 1 February 2016, some eight months later. In relation to the Alexandra assault, he first appeared on 4 December

2015 and the guilty plea was entered in the circumstances previously outlined on

12 April 2016. Mr Livett’s guilty plea only came after he had initially pleaded not guilty and elected trial by jury on 19 January 2016. The resolution of the charges came after the Crown filed its Charge Notice, by which it withdrew a burglary charge and included as an alternative the charge of assault with intent to injure to that originally laid by the police of injuring with intent to injure.

[38] In relation to the first prison assault, Mr Livett pleaded guilty approximately a month after his first appearance, and similarly in respect of the second assault charge.

[39] As is apparent from the considerations discussed by McGrath J in Hessell v R, the timing of the entry of the plea is not the only factor to be taken into account when determining the appropriate credit for a guilty plea, although it is an influential one.¹⁶ All the circumstances relating to the entry of pleas need to be taken into account, including the strength of the prosecution evidence and whether the plea has been entered as a result of negotiations resulting in a lesser offence, as was the situation in the present case. Where a charge is amended as a result of an agreement between the prosecution and the defence, a full discount may have the effect of

double counting:

[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending.

[40] Having made those observations, I accept it is arguable Mr Livett may have had a legitimate expectation that a discount in the order of 20 per cent would have been applied. However, I need to be satisfied that Judge Phillips fell into error in choosing to apply a 15 per cent discount in respect of all the offending. The Judge considered that 15 per cent appropriately reflected the benefit of the pleas having regard to their respective timings, the strength of the cases which Mr Livett faced in respect of each charge, and the need for the credit to reflect the appropriate overall discount. In my view, the percentage he applied was available to the Judge in the exercise of his discretion.

Disparity between sentencing for the same charges

[41] Mr Livett made the submission that he faced three charges of assault with intent to injure but that the sentence imposed in respect of the Alexandra assault was

¹⁶ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].

disproportionate to that imposed in respect of the prison assaults. He submitted this could not be accounted for by the additional feature of the assault occurring on the victim’s property and his vulnerability after being punched to the ground when the attack continued.

[42] I do not find that approach persuasive. It does not follow from a comparison of the three component sentences that the Alexandra sentence was excessive. It may be the sentences imposed in respect of the attack on Mr Livett’s fellow inmates were modest. The submission only underscores the importance of focussing on the overall effective sentence imposed to reflect the four separate episodes of violence for which Mr Livett was for sentence.

Starting point for Alexandra assault and overall sentence

[43] Mr Livett has acknowledged that because of the type of violent offending encompassed by a charge of assault with intent to injure which may occur in a wide range of circumstances, little benefit is gained from a review of numerous High Court authorities to determine whether the starting point in any given case is appropriate.

[44] However, after reviewing a number of such decisions he contended the starting point of 20 months adopted by Judge Phillips for the Alexandra assault was excessive. Mr Livett submitted a starting point of between 15 and 18 months would have been consistent with the level of violence and the aggravating features of the Alexandra assault comparative with the sentences imposed in respect of the prison charges.¹⁷

[45] The Crown’s reply was to submit the overall sentence imposed for all the violent offending was within the range available to the sentencing Judge. It emphasised the assault shared the common features of being unprovoked and involved attacks to the head but was more serious because of the additional

_{aggravating features of there being an element of home invasion, and the}

17. R v Te Hei [2016] NZHC 1538; Thomason v Police [2016] NZHC 596; Kareko v Police [2016] NZHC 870.

continuation of the attack on the victim when he was on the ground offering no resistance.

[46] In my view, Mr Livett’s argument is a very difficult one to sustain in the context of a challenge to a single sentence imposed as a part of a greater sentence designed to represent four separate unrelated charges of violence. As I have already accepted, the Court was required to impose individual sentences which on their face adequately represented the seriousness of the charges, but also had to give effect to the principle of totality by imposing a combination of concurrent and cumulative sentences as required by s 85(3) of the Sentencing Act 2002.

[47] Judge Phillips took a starting point of 20 months imprisonment for the Alexandra assault. This is only two months higher than the range argued as being available on appeal by Mr Livett. After coming to a total end sentence of three years and seven months imprisonment, which included as a component a period of imprisonment for the April 2015 male assaults female, the sentencing Judge was required to structure the sentence between the four charges. No doubt Judge Phillips did this with a view to giving effect to the principles set out in s 85. Judge Phillips chose to do this by imposing a sentence of two years for the Alexandra assault and cumulative sentences of seven months and one year for each of the prison assaults. A six month term of imprisonment was imposed concurrently on the male assaults female charge.

[48] Mr Livett’s submission was that the two year term of imprisonment for the Alexandra assault be quashed and substituted with a sentence in the order of 14 months. That submission illustrates the difficulty of Mr Livett’s position of focussing on a single sentence imposed as part of a longer effective sentence for multiple offending. There were innumerable ways Judge Phillips could have chosen to structure the effective sentence he had reached. For example, had he imposed a sentence of 14 months for the Alexandra assault, he may have equally chosen to have imposed a six month sentence for the male assaults female charge cumulatively, thereby achieving what he considered as part of the original sentencing exercise to be the appropriate overall sentence to reflect the total criminality which Mr Livett’s four episodes of offending represented.

[49] This analysis only underlines the importance of focussing on the total sentence imposed by the sentencing Court rather than its component parts. In approaching the issue of the combination of sentences as Judge Phillips did, he was no doubt mindful of the need for the individual sentences to reflect the criminality of each charge, but equally of the need to ensure the overall sentence did not breach the principle of totality. He adjusted his preliminary end point by two months to ensure the totality principle was not infringed. The Judge therefore was obviously aware of the need to ensure his effective total sentence reflected the overall criminality of Mr Livett’s conduct.

[50] Accordingly, it is not sufficient for Mr Livett to identify one sentence in respect of one charge that made up the total sentence imposed in order to successfully challenge the overall effective sentence which he received. It is necessary for him to show the total sentence was manifestly excessive when regard is had to the seriousness of his offending. In my view, he has not achieved that result.

Conclusion

[51] I do not consider Judge Phillips erred in the sentence imposed for the Alexandra assault. Even had I been satisfied that some error had resulted from the way the Judge approached the sentencing in respect of that charge, I would need to be satisfied that a different sentence be imposed. Because Mr Livett was for sentence for multiple offending and the Judge was required to structure his overall effective sentence by imposing a combination of cumulative and concurrent sentences, I am satisfied that no different sentence should have been imposed for the Alexandra assault.

[52] Accordingly, the appeal is dismissed.

Remission of fines and substitute of sentence of imprisonment

[53] Judge Phillips remitted Mr Livett’s outstanding fines and imposed a concurrent sentence of two months imprisonment in lieu. The Crown has raised a concern the process required under s 88 of the Summary Proceedings Act 1957 was

not followed. It submitted there is no reference to a report having been prepared by the registrar under s 88(2)(b) of that Act and, accordingly, that the fines were remitted without jurisdiction.

[54] Section 88 of the Summary Proceedings Act 1957 provides:

88 Actions if fine remains unpaid

(1) This section applies if—

(a) the Registrar has taken enforcement action under section

87(2), but the fine remains unpaid; or

(b) the Registrar is satisfied that the defendant does not have the means to pay the fine; or

(c) the Registrar is satisfied that—

(i) reasonable steps have been taken to locate the defendant, but the defendant has not been located and therefore enforcement action would be unlikely to be effective; or

(ii) for any other reason enforcement action would be unlikely to be effective.

(2) The Registrar may—

_...

(b) refer the matter to a District Court Judge or Community

Magistrate with a report on the circumstances of the case.

_...

[55] Section 88AE of the Act provides:

88AE Powers of District Court Judge or Community Magistrate after considering report of Registrar under section 88(2)(b) or

88AD(2)(c)

(1) After considering the report of the Registrar prepared under section

88(2)(b) or 88AD(2)(c) and the defendant’s financial position

(whether determined from a declaration of financial capacity prepared by the defendant or from other sources), a District Court Judge or Community Magistrate may—

...

(b) subject to section 106E, direct that a warrant of commitment in the prescribed form be issued; or

...

[56] Section 106E of the Act imposes further restrictions on substituting a sentence of imprisonment for the remission of fines:

106E Restrictions on substituted sentences

(1) A District Court Judge or Community Magistrate must not impose a substituted sentence on a defendant for non-payment of 1 or more fines under this Part unless—

(a) an assessment of the defendant’s financial capacity has been recently completed, being an assessment that does not include information given by a third party unless it also gives details of the source of the information and the date to which the information relates; and

(b) the Judge or Community Magistrate has considered the assessment; and

(c) the Judge or Community Magistrate is satisfied that all other methods of enforcing the fine or fines have been considered or tried and that they are inappropriate or have been unsuccessful.

...

(3) A District Court Judge may, subject to the restrictions set out in this section,—

...

(b) issue, or direct the issue of, a warrant of commitment for the imprisonment of a defendant for non-payment of 1 or more fines under this Part.

(4) In sentencing a defendant for non-payment of 1 or more fines under this Part, the court must impose the least restrictive sentence that is appropriate in the circumstances.

...

(7) A District Court Judge must not issue, or direct the issue of, a warrant of commitment for the imprisonment of a defendant in accordance with subsection (3)(b) unless—

(a) the defendant has had the same opportunity for legal representation as is available to a defendant who is liable to a sentence of imprisonment under section 30 of the Sentencing Act 2002; and

(b) the warrant of commitment can be executed immediately;

and

(c) either of the following applies:

(i) the defendant is already undergoing a sentence of imprisonment or is about to be sentenced to imprisonment for another offence at the time that the Judge is considering the sentence for the defendant for non-payment of 1 or more fines under this Part:

(ii) the Judge is satisfied that the defendant has the financial capacity to pay the fine or fines.

[57] The Crown is correct that there is no reference in Judge Phillips’ sentencing remarks to a report having been prepared by the registrar under s 88(2)(b) of the Act. Previous authorities make it clear that a District Court Judge does not have jurisdiction to remit fines outside of the Summary Proceedings Act procedure.¹⁸

However, his sentencing notes clearly disclose the fact it was brought to his attention that Mr Livett had outstanding fines in the sum of $6,107.79.

[58] The Crown’s observation that “it does not appear” the statutory process was followed can be taken no further than that. Accordingly, I am not prepared to interfere with the Judge’s order in the absence of information that demonstrates the correct procedure was not followed and that the Court was without jurisdiction.¹⁹ I have no basis to conclusively find that he did not.

Solicitors:

A Stevens Barrister, Dunedin

Crown Law, Wellington

¹⁸ R v King CA23/01, 21 June 2001 at [4]; R v Elin [2008] NZCA 239 at [5]; Brown v R [2009] NZCA 288 at [28]; Hunt v R [2010] NZCA 78 at [16]; Wand v R [2011] NZCA 44 at [4]; Nahi v Police [2012] NZHC 2576.

¹⁹ Kalepo v Police [2013] NZHC 322 at [12].